American Pacific Plywood, Inc. v. United States

Slip Op. 25-

UNITED STATES

COURT OF INTERNATIONAL TRADE

Consol. Ct. No. 20-03914

AMERICAN PACIFIC PLYWOOD, INC.,

INTERGLOBAL FOREST LLC, and

U.S. GLOBAL FOREST, INC.,

Plaintiffs,

and

LB WOOD CAMBODIA CO., LTD., and

CAMBODIAN HAPPY HOME WOOD

PRODUCTS CO, LTD.,

Plaintiff-Intervenors,

v.

UNITED STATES,

Defendant,

and

COALITION FOR FAIR TRADE IN

HARDWOOD PLYWOOD,

Defendant-Intervenor.

Before: M. Miller Baker, Judge

OPINION

[Sustaining Customs’s redetermination that importers

evaded antidumping and countervailing duties.]

Dated: July 9, 2025

Consol. Ct. No. 20-03914 Page 2

Thomas H. Cadden and Ivan U. Cisneros, Cadden &

Fuller LLP, Irvine, CA, on the comments for Plaintiff

InterGlobal Forest, LLC.

Brian M. Boynton, Principal Deputy Assistant Attor-

ney General; Patricia M. McCarthy, Director; Claudia

Burke, Deputy Director; Justin R. Miller, Attorney-in-

Charge, International Trade Field Office; and Hardeep

K. Josan, Senior Trial Attorney, Commercial Litiga-

tion Branch, Civil Division, U.S. Department of Jus-

tice, New York, NY, on the comments for Defendant.

Of counsel on the comments was Tamari J. Lagvilava,

Senior Attorney, Office of the Chief Counsel, U.S. Cus-

toms and Border Protection.

Timothy C. Brightbill, Maureen E. Thorson, Stephanie

M. Bell, and Stephen A. Morrison, Wiley Rein LLP,

Washington, DC, on the comments for Defendant-In-

tervenor.

Baker, Judge: These consolidated cases involving

U.S. Customs and Border Protection’s determination

that Plaintiffs evaded antidumping and countervail-

ing duties by falsely describing plywood from China as

a product of Cambodia return following remand. For

the reasons explained below, the court sustains the

agency’s decision to stand by its finding of evasion. 1

1 In so doing, the court declines to redact certain infor-

mation from the confidential record that the agency has

(footnote continues on next page)

Consol. Ct. No. 20-03914 Page 3

I

A

The Enforce and Protect Act (EAPA), 19 U.S.C.

§ 1517, directs Customs to open an investigation after

receiving an allegation that “reasonably suggests” an

importer has “eva[ded]” an antidumping or counter-

vailing duty order. See id. § 1517(a)(3), (b)(1)–(2). The

statute defines “evasion” as the entry of covered goods

through any “material and false” statement, “or any

omission that is material,” that reduces or avoids such

duties. Id. § 1517(a)(5)(A).2

disclosed or otherwise warrants unveiling given the “com-

mon law right of public access to court proceedings.” In re

Violation of Rule 28(d), 635 F.3d 1352, 1356 (Fed. Cir.

2011) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,

597–99 (1978)).

2 Evasion is to be distinguished from “circumvention,” a

statutory first cousin that makes a cameo appearance later

in this opinion. Although both entail the same end—dodg-

ing antidumping and countervailing duties—they employ

different (and mutually exclusive) means. Evasion con-

cerns making false or misleading statements to Customs in

entering merchandise, typically regarding the country of

origin, one of the two elements of an antidumping or coun-

tervailing duty order’s scope (the other being the product’s

technical characteristics, see Canadian Solar, Inc. v.

United States, 918 F.3d 909, 917–18 (Fed. Cir. 2019)). Cir-

cumvention, on the other hand, involves the exporter’s

completion or assembly of like goods in either the United

States or a third country using parts from a country subject

(footnote continues on next page)

Consol. Ct. No. 20-03914 Page 4

It excepts from this definition material false state-

ments or material omissions resulting from “clerical

error.” Id. § 1517(a)(5)(B)(i). This exception, in turn,

contains its own exception for any clerical error that

“is part of a pattern of negligent conduct.” Id.

§ 1517(a)(5)(B)(ii). 3

If Customs finds evasion, it must require the im-

porter to post cash deposits and pay duties at the rate

directed by the Department of Commerce. Id.

§ 1517(d)(1)(D). 4 The former agency may also take

to an antidumping or countervailing duty order. See

19 U.S.C. §§ 1677j(a)(1)(A)–(D), (b)(1)(A)–(E); see also Ca-

nadian Solar Int’l Ltd. v. United States, Cases 23-00222

and 23-00227, Slip Op. 25-59, at 2–6, 2025 WL 1420317, at

**1–2 (CIT May 16, 2025) (explaining background legal

principles in circumvention cases). By definition, “[c]ircum-

vention can only occur if the articles are from a country not

covered by the relevant AD or CVD orders.” Bell Supply Co.

v. United States, 888 F.3d 1222, 1229 (Fed. Cir. 2018).

3 And even a material false statement or material omission

resulting from a clerical error that is not part of a pattern

of negligent conduct does not “excuse that person from the

payment of any duties applicable to the merchandise.” Id.

§ 1517(a)(5)(B)(iv). It merely shields the importer from cer-

tain second-order effects resulting from an evasion deter-

mination. See id. § 1517(d)(1)(E).

4 If Customs “is unable to determine whether the merchan-

dise at issue is covered” by an order, it must refer that

question to Commerce. Id. § 1517(b)(4)(A)(i). The latter, in

turn, “shall” make such a determination and communicate

the results to the former. Id. § 1517(b)(4)(B). The applicable

(footnote continues on next page)

Consol. Ct. No. 20-03914 Page 5

“additional enforcement measures” as it “determines

appropriate.” 19 U.S.C. § 1517(d)(1)(E).

B

In 2018, Commerce imposed antidumping and

countervailing duties on plywood made in China. See

83 Fed. Reg. 504, 504–13; 83 Fed. Reg. 513, 513–16

(the orders). The following year, the Coalition for Fair

Trade in Hardwood Plywood—a group of domestic pro-

ducers—lodged an EAPA allegation with Customs. It

alleged that certain importers, including Plaintiff In-

terGlobal Forest LLC, falsely identified entries of Chi-

nese-made plywood as products of Cambodia.

After an investigation, the agency found that the

importers’ ostensibly “Cambodian-origin” plywood

came from China. Appx01034. As relevant here, Cus-

toms concluded that InterGlobal’s Cambodian sup-

plier, LB Wood, “could not have produced” all the ply-

wood it claimed to have made in that country.

Appx01043. Thus, the latter company “commingled”

locally made and “Chinese-origin” plywood, which it

then exported to InterGlobal through entries “that

evaded the payment of AD/CVD duties on plywood

from China.” Id. Customs’s appellate division reaf-

firmed that conclusion on de novo review. See

Appx01073.

regulation refers to this administrative lateral pass as a

“covered merchandise referral.” See 19 C.F.R. § 351.227.

Consol. Ct. No. 20-03914 Page 6

The importers then filed these consolidated suits,

and their Cambodian suppliers, including LB Wood,

joined the fray as plaintiff-intervenors. The Coalition

also intervened on the side of the government. After

merits briefing, the court sustained Customs’s deter-

mination. See Am. Pac. Plywood, Inc. v. United States,

Consol. Case 20-03914, Slip Op. 23-93, 2023 WL

4288346 (CIT June 22, 2023) (Am. Pac. Plywood I).

The importers and their suppliers appealed.

In the meantime, the court of appeals issued Royal

Brush Manufacturing, Inc. v. United States, 75 F.4th

1250 (Fed. Cir. 2023). It held that Customs’s refusal to

allow importers accused of evasion to review and ad-

dress “information on which the agency relied in

reaching its decision” violated procedural due process.

Id. at 1262. The government then sought, and the Fed-

eral Circuit granted, a voluntary remand in these

cases because of that decision. See Nos. 23-2321, 23-

2322, 2024 WL 302393, at *1 (Fed. Cir. Jan. 26, 2024).

This court, in turn, remanded to Customs “for further

proceedings consistent with Royal Brush.” ECF 94,

at 1.

On remand, Customs professed to allowing the im-

porters “access to the business confidential informa-

tion on which [it] relied.” Appx45385. They were also

able to submit rebuttal evidence and written argu-

ments. Id. Only InterGlobal elected to do so. See

Appx45382–45384. The agency then reaffirmed its

finding of evasion. Appx45427. In doing so, it

Consol. Ct. No. 20-03914 Page 7

incorporated its prior findings and provided more rea-

sons for its conclusion that LB Wood transshipped Chi-

nese-origin plywood to InterGlobal in the U.S. See

Appx45385–45427. The latter now challenges that re-

determination.

II

The parties agree that the court should apply the

substantial-evidence standard of review, but that’s not

correct, at least as a technical matter. “The statute re-

quires the court to determine whether Customs com-

plied with the procedures in [19 U.S.C.] § 1517(c) . . . .”

Am. Pac. Plywood I, Slip Op. 23-93, at 12–13, 2023 WL

4288346, at *4 (emphasis in original) (citing 19 U.S.C.

§ 1517(g)(2)(A)). As relevant here, those “procedures”

required the agency to make its redetermination

“based on substantial evidence.” 19 U.S.C.

§ 1517(c)(1)(A). For purposes of § 1517(g)(2)(A), the

court’s task is thus to consider whether the agency ap-

plied that standard in making its findings. The court

also assesses whether the redetermination “is arbi-

trary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” Am. Pac. Plywood I, Slip

Op. 23-93, at 12, 2023 WL 4288346, at *4 (quoting 19

U.S.C. § 1517(g)(2)(B) and citing 28 U.S.C. § 2640(e)).

That said, there is a longstanding “debate, which

has a how-many-angels-can-dance-on-the-head-of-a-

pin quality, . . . regarding whether” substantial-evi-

dence and arbitrariness review “actually differ mate-

rially in intensity.” 33 Wright & Miller, Federal

Consol. Ct. No. 20-03914 Page 8

Practice and Procedure § 8393 (2d ed. May 2025 up-

date). On one side of this dispute is the perspective

that the substantial-evidence standard “is . . . less def-

erential . . . than ‘arbitrary, capricious.’୻” In re Gart-

side, 203 F.3d 1305, 1312 (Fed. Cir. 2000) (citing Am.

Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461

U.S. 402, 412–13 n.7 (1983)); see also Harry Edwards

& Linda Elliott, Federal Standards of Review 279–80

(3d ed. 2018) (“The differences between arbitrary and

capricious and substantial evidence review are not

great, but they are more than semantic.”).

“The alternative view, closely associated with Jus-

tice Scalia, is that it makes no sense to think of arbi-

trariness review as less strict than substantial evi-

dence review.” 33 Wright & Miller § 8403; see also

Caiola v. Carroll, 851 F.2d 395, 398 (D.C. Cir. 1988)

(stating that the distinction between substantial-evi-

dence and arbitrary-and-capricious review is “largely

semantic” because under both, the touchstone is ra-

tionality) (citing, inter alia, Ass’n of Data Processing

Serv. Orgs., Inc. v. Bd. of Governors of Fed. Rsrv. Sys.,

745 F.2d 677, 683–84 (D.C. Cir. 1984) (Scalia, J.) (“[I]t

is impossible to conceive of a ‘nonarbitrary’ factual

judgment supported only by evidence that is not sub-

stantial in the APA sense . . . .”) (ellipsis in Caiola)).

Although the court must follow Gartside as binding

circuit precedent on this question, it confesses to

agreeing with those “observers [who] insist that fine-

grained disputes over the relative intensities of

Consol. Ct. No. 20-03914 Page 9

supposedly different types of rationality review betray

an unrealistic understanding of the real nature of ju-

dicial capacities.” 33 Wright & Miller § 8403; cf. United

States v. Dominguez Benitez, 542 U.S. 74, 86–87 (2004)

(Scalia, J., concurring) (in the context of plain error re-

view in criminal cases, stating that “ineffable grada-

tions of probability seem to me quite beyond the ability

of the judicial mind (or any mind) to grasp, and thus

harmful rather than helpful to the consistency and ra-

tionality of judicial decisionmaking”).

III

A

InterGlobal argues that Customs’s redetermination

was unlawful because it ignored the agency’s previous

acknowledgment that the orders only cover plywood

containing “at least three plies.” ECF 107, at 4 (empha-

sis by the company and quoting the redetermination

in Far E. Am., Inc. v. United States, Case 22-213,

ECF 71, at 4 (itself quoting Vietnam Finewood Co. v.

United States, 633 F. Supp. 3d 1243, 1262 (CIT 2023))).

The company appears to contend that its imports con-

tained fewer than three plies and thus were out-of-

scope. But it cites no record evidence for this proposi-

tion. The court again reiterates that it does not

“୻‘hunt[] for truffles buried in briefs’ or in administra-

tive records.” Am. Pac. Plywood I, Slip Op. 23-93, at 40,

2023 WL 4288346, at *13 (quoting United States v.

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per cu-

riam)).

Consol. Ct. No. 20-03914 Page 10

In any event, as the government argues, the com-

pany never raised this issue before the agency on re-

mand when it had the opportunity to do so. 5 See ECF

113, at 13. The Coalition similarly observes that Inter-

Global never asserted that it shipped goods of fewer

than three plies. ECF 115, at 16 n.3 (citing

Appx45223–45225). By failing to do so, InterGlobal

waived this argument. “Simple fairness . . . requires as

a general rule that courts should not topple over ad-

ministrative decisions unless the administrative body

not only has erred but has erred against objection

made at the time appropriate under its practice.”

Deseado Int’l, Ltd. v. United States, 600 F.3d 1377,

1380–81 (Fed. Cir. 2010) (quoting United States v. L.A.

Tucker Truck Lines, 344 U.S. 33, 37 (1952)).

B

InterGlobal next challenges Customs’s reliance on

its agent’s visit to LB Wood’s factory. ECF 107, at 5–8.

The company mounts both legal and factual attacks on

the agent’s findings.

5 Vietnam Finewood issued before the remand here. In Far

East, Customs bowed to that decision on March 1, 2024. See

Case 22-213, ECF 71. In this case, InterGlobal filed its

written arguments and rebuttal evidence with the agency

two months later, on April 30. See Appx45213–45265. And

the following month, it filed comments on the agency’s

draft redetermination. See Appx45352–45371. The com-

pany thus had not one, but two opportunities on remand to

flag the three-ply issue.

Consol. Ct. No. 20-03914 Page 11

The legal argument is that a Commerce regulation

reserves the power to determine whether a product is

in-scope to the Department, “not [Customs] or its

agents.” Id. at 5–6 (emphasis in original) (citing

19 C.F.R. § 351.225). But EAPA punts this authority

to Commerce only when Customs “is unable to deter-

mine whether the merchandise at issue is covered.”

19 U.S.C. § 1517(b)(4)(A). Because Customs could

make a scope determination here, Commerce simply

had no role. See also Sunpreme Inc. v. United States,

946 F.3d 1300, 1317 (Fed. Cir. 2020) (en banc) (“Cus-

toms is both empowered and obligated to determine in

the first instance whether goods are subject to existing

antidumping or countervailing duty orders.”); Van-

guard Trading Co. v. United States, Case 23-00253,

Slip Op. 25-61, at 18–22, 2025 WL 1503581, at **8–10

(CIT May 19, 2025) (rejecting an argument similar to

InterGlobal’s).

The factual attack concerns the agent’s June 6,

2018, visit to LB Wood’s Cambodian factory. Inter-

Global has a litany of complaints: The inspection pre-

ceded the investigation’s start by a year; there was no

follow-up visit; the agency didn’t describe her exper-

tise; and the record lacks any declaration or any con-

temporaneous reports, records, or communications by

the agent, save for eight photographs taken during

that visit. ECF 107, at 5, 7.

These contentions, of course, were for the agency to

weigh and respond to, which it did sufficiently to

Consol. Ct. No. 20-03914 Page 12

satisfy arbitrariness review. It explained that the

agent’s site visit occurred during the period of investi-

gation, which began on June 5, 2018. Appx01067. 6 Alt-

hough the visit was for a different purpose, it “exam-

ined the same types of facts as relevant to this EAPA

investigation.” Appx01067. Customs pointed to docu-

ments related to that visit, see Appx45404 & n.178,

which included contemporaneous photographs of LB

Wood’s factory and emails written by the agent just

over a year later describing her findings based on

those photographs, Appx07018–07038.7 She “is a Na-

tional Import Specialist for wood products” with “ex-

pertise” that allows her to “make authoritative pro-

nouncements” regarding whether such goods are in-

scope. Appx45396. 8

6 In announcing the investigation, the agency stated that it

would cover entries made beginning one year before receipt

of the evasion allegations—which occurred on June 5,

2019—through the pendency of the investigation.

Appx01020–01021 (citing 19 C.F.R. § 165.2). The investi-

gation ended on June 29, 2020, the date of the agency’s eva-

sion determination. Appx01034; Appx45381 n.46.

7 Customs also pointed out that insofar as InterGlobal com-

plained that the agent’s email summarizing her findings

came a year after her site visit, her recollection is more re-

liable than the declaration of Kurt Winn the company sub-

mitted, which came six years after his 2018 visits to LB

Wood’s factory. Appx45395.

8 At the end of its brief, InterGlobal launches another fac-

tual attack by asserting that Customs “continues to

(footnote continues on next page)

Consol. Ct. No. 20-03914 Page 13

C

InterGlobal argues at length that evidence it sub-

mitted on remand—declarations and attached photo-

graphs from Kurt Winn, its chief operating officer, and

from Fu Wenjie, the manager of LB Wood’s Cambodian

factory—rebutted the agency’s finding that the latter

company’s facility could not produce the plywood im-

ported by the former. ECF 107, at 9–23. Based on this

exhaustive presentation, it contends that “the Court

must find that there was no evasion” by the company.

Id. at 20; see also id. at 17 (accusing Customs of

“fail[ing] to properly weigh relevant production data”).

The problem is that the court does not weigh evi-

dence and make findings in this context. Instead, as

discussed above, its limited role is to assess whether

the agency applied the substantial-evidence standard

confuse the issues by belaboring the non-issues that (1)

[the company] purchased Chinese plywood before the Or-

ders were in effect, (2) [LB Wood] was founded in December

2017 and its general manager used to work for [another

company], and (3) [LB Wood] operated out of the Sihan-

oukville Special Economic Zone.” ECF 107, at 36. The com-

pany offers no record citations or argument to support its

claim that these issues are irrelevant or that Customs “con-

fuse[d] the issues.” By failing to develop these points, the

company has waived them. Cf. Fresenius USA, Inc. v. Bax-

ter Int’l, Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009) (“If a

party . . . presents only a skeletal or undeveloped argument

to the trial court, we may deem that argument waived

. . . .”).

Consol. Ct. No. 20-03914 Page 14

and otherwise refrained from arbitrariness in its deci-

sion making. See also Am. Pac. Plywood I, Slip Op.

23-93, at 29, 2023 WL 4288346, at *9 (explaining why

the court cannot re-weigh evidence in EAPA cases).

InterGlobal does not dispute that Customs applied

the substantial-evidence standard, as the latter said it

did. See Appx45401–45402. Nor does the company se-

riously contend that the agency overlooked or failed to

grapple with the Winn declaration and supporting

photographs. In fact, Customs carefully analyzed that

material and concluded that if anything, it supported

the finding of evasion. See Appx45385–45389;

Appx45419–45422; Appx45424–45425. 9 InterGlobal

doesn’t point to anything arbitrary in that assessment.

The company does argue that Customs arbitrarily

“disregard[ed] the Wenjie Declaration outright.”

ECF 107, at 23 (citing Appx45389). But that’s not what

the agency did. It explained that the document “adds

no substantive value in that it [largely] restates infor-

mation already placed on the pre-remand administra-

tive record.” Appx45389. While six paragraphs did not

9 Customs dismissed one photograph attached to the Winn

declaration because there was “no assurance” it was “legit-

imate, given that the photograph was not provided during

the . . . EAPA investigation.” Appx45425. InterGlobal com-

plains that “[t]his objection lacks merit” because the court’s

remand order authorized rebuttal evidence. ECF 107, at 12

n.5. The agency, however, was not required to credit any

new evidence. Its task was to consider the new evidence,

weigh it, and provide a reasonable explanation—as it did.

Consol. Ct. No. 20-03914 Page 15

cite to that record, the agency assigned them “no

weight” because they provided “a subjective opinion”

and did not offer “new substantive information war-

ranting a reversal” of the evasion determination.

Appx45389–45390. And Customs spelled out why “cer-

tain aspects” of the declaration “call[ed] its reliability

into question.” Appx45422–45423. This was reasoned

decision making, not an agency run amok.

D

InterGlobal complains that Customs relied on Ika-

dan System USA, Inc. v. United States, 639 F. Supp. 3d

1339 (CIT 2023), to find that “all that is required” for

EAPA liability to attach is an importer’s entry of cov-

ered merchandise “without declaring it as subject to

AD/CVD orders . . . .” Appx45409. See ECF 107, at 24.

The company contends that Ikadan misread the stat-

ute. It argues that the court should instead follow Di-

amond Tools Technology LLC v. United States, 609

F. Supp. 3d 1378 (CIT 2022) (Diamond Tools II), which

it characterizes as holding that EAPA demands “a de-

gree of culpability.” ECF 107, at 26.

The court agrees with Ikadan that EAPA must be

“read as a whole.” 639 F. Supp. 3d at 1349; cf. Scalia &

Garner, Reading Law: The Interpretation of Legal

Texts 168 (2012) (“[T]he meaning of a statute is to be

looked for, not in any single section, but in all the parts

together and in their relation to the end in view.”)

(quoting Panama Refin. Co. v. Ryan, 293 U.S. 388, 439

(1935) (Cardozo, J., dissenting)). Such a reading

Consol. Ct. No. 20-03914 Page 16

“supports [Customs’s] strict liability interpretation of”

the statute. Ikadan, 639 F. Supp. 3d at 1349. 10 That’s

because the statute’s definition of evasion excludes

material false statements or material omissions re-

sulting from “clerical error.” 19 U.S.C.

§ 1517(a)(5)(B)(i). This exception, in turn, contains its

own exception for any clerical error that “is part of a

pattern of negligent conduct.” Id. § 1517(a)(5)(B)(ii).

Putting all this together, evasion is the entry of cov-

ered merchandise through any material false state-

ment or material omission that avoids antidumping

and countervailing duties, except those resulting from

clerical errors. Even then, such errors constitute eva-

sion if they are “part of a pattern of negligent conduct.”

Diamond Tools II does not help InterGlobal over-

come this reading. In that case, the court merely ap-

plied the truism that evasion requires (1) the entry of

covered goods (2) through a material false statement

or material omission (3) that avoids antidumping

and/or countervailing duties. See 609 F. Supp. 3d at

1383 (outlining the statutory elements); see also Dia-

mond Tools Tech. LLC v. United States, 545 F.

10 Although Ikadan only held that Customs’s reading was

“reasonable” under the now-defunct Chevron doctrine, not

that it was “the only possible interpretation or . . . the one

[the] court [thought] best,” id. (ellipsis in original) (quoting

Holder v. Martinez Gutierrez, 566 U.S. 583, 591 (2012)), to-

day the court holds that Customs’s strict-liability interpre-

tation is the best.

Consol. Ct. No. 20-03914 Page 17

Supp. 3d 1324, 1347 (CIT 2021) (Diamond Tools I)

(same). The court twice held that Customs failed to ex-

plain how an importer made a material false state-

ment or material omission by denominating Thai-

made sawblades as not covered by an order applicable

to such goods produced in China. See 609 F. Supp. 3d

at 1385–91; 545 F. Supp. 3d at 1351–55. 11

11 In Diamond Tools, Customs could not determine in an

EAPA investigation whether sawblades made by joining

Chinese-made cores and segments in Thailand fell within

the scope of an antidumping order on Chinese sawblades

and therefore made a covered-merchandise referral to

Commerce. See 545 F. Supp. 3d at 1330. The latter, in turn,

collapsed the referral into a concurrent circumvention in-

vestigation of imports of such goods from Thailand, which

ultimately returned an affirmative finding. Id. This had

the effect of enlarging the scope of the original order that

was the subject of the referral, see 19 U.S.C. § 1677j(b)(1)

(authorizing the Department, upon a finding of circumven-

tion, to “include such imported merchandise within the

scope” of the applicable order), which until then was lim-

ited to sawblades created by the joinder of cores and seg-

ments in China. See 545 F. Supp. 3d at 1353–54. Based on

this circumvention finding, Commerce told Customs that

sawblades made by such joinder in Thailand were covered.

See id. at 1330. The latter agency applied that finding to

all of Diamond Tools’s imports from Thailand, including

entries made before the Department opened its circumven-

tion investigation in December 2017. See id. at 1331.

Over the importer’s objections, Diamond Tools I upheld

Customs’s determination that the order covered pre–De-

cember 2017 entries. See id. at 1347–51. It reasoned that

(footnote continues on next page)

Consol. Ct. No. 20-03914 Page 18

InterGlobal claims it likewise reasonably relied on

the orders’ scope language, which according to Vi-

etnam Finewood is limited to plywood with “at least

three plies.” 633 F. Supp. 3d at 1262. The company

contends that because its imports contained at most

two plies, they were out-of-scope. ECF 107, at 30–31.

under Chevron step one, EAPA does not speak directly to

whether a circumvention determination’s “temporal limi-

tation” applies when Commerce uses that finding to re-

spond to a covered-merchandise inquiry. Id. at 1349. Under

Chevron step two, Customs’s interpretation that EAPA

permitted it to disregard that limit was reasonable. See id.

at 1349–51.

The court doubts that in this post-Chevron jurispruden-

tial world, Customs’s covered-merchandise switcheroo in

Diamond Tools I would withstand scrutiny. EAPA author-

izes the agency to ask Commerce whether the product in

question “is covered merchandise.” 19 U.S.C.

§ 1517(b)(4)(A)(i) (emphasis added). “Covered merchan-

dise,” in turn, is defined as “merchandise that is subject to”

an antidumping or countervailing duty order. Id.

§ 1517(a)(3) (emphasis added). Entries from an origin-

country different from that specified in such an order are

not “subject to” it, at least until the Department opens a

circumvention investigation that ultimately expands the

order’s scope. This reading is further reinforced by the def-

inition of evasion: “entering covered merchandise” through

any material false statement or material omission that

avoids duties. Id. § 1517(a)(5)(A) (emphasis added). Mer-

chandise that is not covered or subject to a circumvention

investigation at the time of entry does not evade antidump-

ing or countervailing duties when an importer denomi-

nates it as not covered.

Consol. Ct. No. 20-03914 Page 19

But as noted above, InterGlobal did not make this ar-

gument on remand when it had the opportunity. The

court therefore declines to entertain it. See Deseado,

600 F.3d at 1380–81.

Finally, InterGlobal maintains that it took reason-

able care to confirm that Cambodia, not China, was

the country of origin of its plywood. ECF 107, at 27–

29. The company contends that because it did so, it is

immune from any evasion liability. Id. at 27. In so ar-

guing, it relies on the Tariff Act’s general provision re-

quiring that importers “us[e] reasonable care” in mak-

ing entries. Id. (quoting 19 U.S.C. § 1484(a)(1)).

This theory fails because an importer does not use

reasonable care when it enters covered goods through

a material false statement or material omission that

avoids antidumping and/or countervailing duties.

Such an entry necessarily stems—at a minimum—

from negligence, because it departs from what a “rea-

sonably prudent and careful” importer would do “un-

der similar circumstances.” Negligence, Black’s Law

Dictionary 930–31 (5th ed. 1979). The only negligence

excused by the Tariff Act’s evasion provisions is that

resulting from a clerical error that itself is not part of

a pattern of negligent conduct. See 19 U.S.C.

§ 1517(a)(5)(B). 12 The company does not contend that

its designation of Cambodia as the country of origin—

12 But as also explained above, even such a minor error

doesn’t excuse liability for the avoided duties. See 19 U.S.C.

§ 1517(a)(5)(B)(iv).

Consol. Ct. No. 20-03914 Page 20

which the court assumes was false for purposes of this

argument—resulted from a clerical error, so this nar-

rowest of exceptions to strict liability offers it no sanc-

tuary.

E

InterGlobal observes that Customs opened its in-

vestigation after finding that “import/export trends in

China, Cambodia, and the U.S. reasonably suggested

that some Chinese exports of plywood pass through

Cambodia by transshipment.” ECF 107, at 32 (citing

Appx01021–01022, Appx01025). The company then

states that “while a ‘reasonable suggestion’ may be

grounds to initiate an investigation [Customs] cannot

rely on this contradictory data as substantial evidence

of evasion.” Id. It points to three sets of trade data that

it characterizes as “conflicting” and faults the agency

for “refus[ing] to reconcile” the discord. Id. at 32–33. 13

The defect in this argument is that InterGlobal

does not point to where Customs relied on these pur-

portedly conflicting data sets to find evasion on the

13 The first conflicting set involved Cambodian plywood ex-

ports to the U.S. in 2017, where the International Trade

Commission’s reported number greatly exceeded the

United Nations Forestry Yearbook’s. Id. at 33. The second

was Chinese plywood exports to Cambodia in 2017, where

the number provided by the Coalition from undisclosed

sources exceeded the Commission’s. Id. The third was Chi-

nese plywood exports to the U.S. in 2018, where the Coali-

tion’s figure was similarly higher than the agency’s. Id.

Consol. Ct. No. 20-03914 Page 21

company’s part, rather than for purposes of triggering

its investigation. See Appx01025 (notice of initiation

relying on trade data). The court’s own review indi-

cates that the agency’s decision as to InterGlobal

rested on extensive findings about LB Wood’s activi-

ties in Cambodia rather than the trade data. See

Appx01038–01043 (initial determination);

Appx01065–01067, Appx01070–01071 (de novo agency

appellate determination). The latter determination’s

summary as to InterGlobal enumerated five specific

findings that supported the “conclusion that LB Wood

supplied Chinese-origin plywood to InterGlobal . . . ,

which was falsely designated as made in Cambodia

when imported into the United States.” Appx01072.

None of them relied on the trade data that InterGlobal

challenges as inconsistent. 14

On remand, Customs stated that the challenged

trade data were “only a piece of the evidence that [the

agency] considered.” Appx45394. Even so, the court

cannot discern any material reliance on that infor-

mation at the evasion determination, versus the initi-

ation, stage as it pertained to InterGlobal. Thus, inso-

far as Customs failed to address the purported

14 In contrast, Customs’s evasion findings for another im-

porter, U.S. Global, did rely on trade data. See Appx01069

(stating that the trade data “buttressed” Customs’s find-

ings about that company’s Cambodian supplier, Happy

Home).

Consol. Ct. No. 20-03914 Page 22

conflicts in trade data, 15 it made no difference to the

company and thus was harmless error in light of the

agency’s extensive findings based on LB Wood’s activ-

ities. Cf. Al Ghurair Iron & Steel LLC v. United States,

65 F.4th 1351, 1363 (Fed. Cir. 2023) (“Commerce’s

finding . . . was supported by many findings other than

its [erroneous] calculation of [the plaintiff’s] value

added.”).

F

The court remanded so that Customs could provide

“access to [previously withheld confidential] infor-

mation on which the agency relied in reaching its deci-

sion.” Royal Brush, 75 F.4th at 1262 (emphasis added).

The redetermination explained that the company was

allowed to see the full administrative record, which

contained all “materials obtained and considered by

[the agency] during the course of [the] investigation.”

Appx45315 (quoting 19 C.F.R. § 165.21(a)(1)).

InterGlobal now complains that it was denied such

access and hypothesizes a laundry list of secret mate-

rials bearing on Customs’s decision. See ECF 107,

at 35–36. Even assuming the existence of this

15 In any event, the agency did reconcile the incongruity in

one of the three challenged data sets. It explained that the

U.N. Forestry Yearbook data on Cambodian exports to the

U.S. in 2017 were more reliable than the International

Trade Commission’s. See Appx01049 (initial determina-

tion); Appx01069 (appellate determination); Appx45394–

45395 (redetermination).

Consol. Ct. No. 20-03914 Page 23

supposed data trove, the company “makes no specific

citations to where [the agency] relied on this infor-

mation in its determination of evasion.” Royal Brush,

75 F.4th at 1259 n.10 (emphasis added). InterGlobal

having failed to make such a showing, and Customs

having explained that it provided the company “with

access to all of the information it relied upon in making

its determination of evasion,” Appx45415 n.248, the

court finds that the agency complied with Royal

Brush.

IV

InterGlobal moves that the court take judicial no-

tice of various documents outside the administrative

record here but filed in two other CIT actions. See

ECF 129. 16 In those cases, an importer challenged

Customs’s denial of protests contesting the agency’s

classification of plywood as a product of China (and

thus subject to the orders) and alleged that it was in-

stead manufactured in Cambodia by LB Wood. See

Richmond Int’l Forest Prods. LLC v. United States,

Case 21-178, ECF 5, ¶¶ 9–17 (Richmond I); Richmond

Int’l Forest Prods. LLC v. United States, Consol. Case

21-318, ECF 13, ¶¶ 9–17 (Richmond II). 17 The entries

16 The company also (unnecessarily) seeks to add a docu-

ment that is already part of the record in this case to the

remand appendix.

17Case 21-318 was consolidated with Cases 21-63 and

21-319, which involved materially identical allegations.

Consol. Ct. No. 20-03914 Page 24

in both matters were made during the period of inves-

tigation in this case. 18

In Richmond I, the government moved for a con-

fessed judgment acknowledging that the plywood’s

country of origin was Cambodia, which the court

granted on July 1, 2022. Case 21-178, ECF 22. In Rich-

mond II, the parties settled in January 2025 through

the entry of a stipulated judgment under which the

government similarly agreed that Cambodia was the

country of origin of all the entries in question. See Case

21-318, ECF 64. As a result of these filings, the gov-

ernment agreed to refund the antidumping and coun-

tervailing duties that the plaintiffs paid.

According to InterGlobal, the record here and the

documents it requests the court judicially notice show

that it and the Richmond importer bought the same

type of plywood from LB Wood, which sometimes

shipped to both of them on the same day. See ECF 124,

at 3. Moreover, in Richmond II, Customs proffered the

same evidence it relies on here: “the same photo-

graphs, the same memoranda, and the same report”

18 See Case 21-178, ECF 5, ¶ 13 (entry made in February

2019); Case 21-318, ECF 13, ¶ 13 (entries made during De-

cember 2018–February 2019); Case 21-63, ECF 10, ¶ 13

(entries made during August–September 2018); Case

21-319, ECF 10, ¶ 13 (entries made during February–No-

vember 2019). The period of investigation here was June 5,

2018, to June 29, 2020. See note 6.

Consol. Ct. No. 20-03914 Page 25

from the agent’s June 2018 visit. Id. at 4 (citing Case

21-318, ECF 36-2, at 12–13).

Based on these facts, InterGlobal contends that the

agency is judicially estopped from contradicting its

concession in the Richmond cases that the plywood ex-

ported by LB Wood was of Cambodian origin and thus

not subject to the orders. Id. at 5–7 (citing New Hamp-

shire v. Maine, 532 U.S. 742, 750–51 (2001)). The for-

mer company argues that to allow Customs to assert

the contrary position here would impose an “unjusti-

fied and unfair detriment” on InterGlobal. Id. at 6–7.

The government responds that the court cannot

consider matters outside the agency record. ECF 132,

at 2–9. Relatedly, it argues that judicial notice does

not apply when the court undertakes record review, id.

at 12–14, and that in any event the documents submit-

ted by InterGlobal do not satisfy the applicable test

under Federal Rule of Evidence 201, id. at 14–16. Fi-

nally, it contends that judicial estoppel does not apply

here because its concessions in the Richmond cases ap-

plied to different entries. Id. at 10–11.

The court need not consider the government’s pro-

cedural objections because it is not persuaded that the

amorphous doctrine of judicial estoppel 19 applies here.

19 Wright and Miller characterize this so-called doctrine as

“confused,” observing that it is better understood “as a set

of doctrines that have not matured into fully coherent

(footnote continues on next page)

Consol. Ct. No. 20-03914 Page 26

Three non-exclusive factors inform “whether a party’s

inconsistent legal positions constitute judicial estop-

pel.” Trs. in Bankr. of N. Am. Rubber Thread Co. v.

United States, 593 F.3d 1346, 1354 (Fed. Cir. 2010).

They are (1) whether the party’s later position is

“clearly inconsistent” with its prior one; (2) whether it

has “succeeded in persuading a court” to accept its ear-

lier position; and (3) whether its assertion of an incon-

sistent position would give it an unfair advantage over

the opposing party absent estoppel. Id. (citing New

Hampshire v. Maine, 532 U.S. at 750–51).

Judicial estoppel does not fit here because Customs

did not “succeed” in persuading the court of anything

in the Richmond actions. Rather, the agency gave up

and confessed error, either directly or by stipulated

judgment. As the First Circuit has explained, the doc-

trine is concerned with whether “intentional self-con-

tradiction is being used as a means of obtaining unfair

advantage,” which in turn “generally requires that a

party have succeeded previously with a position di-

rectly inconsistent with the one it currently espouses.”

theory.” 18B Federal Practice and Procedure § 4477 (3d ed.

May 2025 update). As a result, its application is “ad hoc . . .

in each case.” Jackson Jordan, Inc. v. Plasser Am. Corp.,

747 F.2d 1567, 1579 (Fed. Cir. 1984) (cleaned up); cf. Am.

Jewish Cong. v. City of Chicago, 827 F.2d 120, 129 (7th Cir.

1987) (Easterbrook, J., dissenting) (“When everything mat-

ters, when nothing is dispositive, when we must juggle in-

commensurable factors, a judge can do little but announce

his gestalt.”).

Consol. Ct. No. 20-03914 Page 27

Franco v. Selective Ins. Co., 184 F.3d 4, 9 (1st Cir.

1999) (cleaned up). The agency’s “position” in the Rich-

mond litigation was plainly consistent with the one it

asserts here—that LB Wood did not manufacture all

the plywood it exported to the U.S.—but it then ran up

the white flag. It hardly “succeeded” in advancing a

position “directly inconsistent” with its theory here.

Just as wars are not won by surrendering, lawsuits are

not won by confessing error.

The court therefore denies InterGlobal’s motion for

judicial notice without prejudice as unnecessary to re-

solve. Even if the court can take notice of the proffered

documents from the Richmond litigation, a party can-

not be judicially estopped solely because of its capitu-

lation to a position that it opposed (and still opposes). 20

To hold otherwise would discourage parties from ever

settling or confessing error. But “[f]ew public policies

are as well established as the principle that courts

should favor voluntary settlements of litigation by the

parties to a dispute.” Am. Sec. Vanlines, Inc. v. Gal-

lagher, 782 F.2d 1056, 1060 (D.C. Cir. 1986) (citations

omitted). Settlements and confessions of error “pro-

duce a substantial savings in judicial resources and

20 The court acknowledges that in New Hampshire v.

Maine, the Supreme Court held that judicial estoppel pre-

cluded the former state from advancing a position incon-

sistent with an earlier consent decree provision that it

“benefited from.” 532 U.S. at 752, 755. InterGlobal points

to no benefit that Customs obtained by its unconditional

surrender in the Richmond cases.

Consol. Ct. No. 20-03914 Page 28

thus aid in controlling backlog in the courts.” Id. at

1060 n.5. They also “promote efficient use of private

resources by reducing litigation and related costs.” Id.

At least as far as judicial estoppel is concerned, liti-

gants that settle or confess error should be permitted

to live and fight another day absent any showing of

some unfair advantage thereby obtained.

* * *

Customs followed the relevant procedures, and no

part of its redetermination is arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance

with law. The court therefore sustains the agency’s re-

determination (ECF 98). It also denies the company’s

motion for judicial notice (ECF 124) without prejudice.

A separate judgment will issue. See USCIT R. 58(a).

Dated: July 9, 2025 /s/ M. Miller Baker

New York, NY Judge